Chapter 6

Veracity and propensity evidence

Development of the veracity and propensity provisions in the Evidence Code and the Act

6.7In its 1997 preliminary paper Evidence Law: Character and Credibility, the Law Commission set out in some detail the law relating to evidence of character and evidence of credibility. They covered:378

prior convictions;

reputation;

previous statements;

physical or mental disorder;

demeanour;

bias; and

corroboration.

6.8There was a considerable body of complex rules applying in respect of each of these categories of evidence,379 often drawing a distinction between the position of defendants in criminal proceedings and that of other witnesses, in order to afford adequate protection to defendants’ fair trial rights by recognising that much of this kind of evidence could be unfairly prejudicial.

Evidence of veracity

6.9Prior to the Act the law had not specifically isolated the concept of “veracity”.380 Generally, parties in a proceeding were relatively free to show that a witness was in error. However, there were more restraints on challenging a witness’s truthfulness, primarily due to concerns that such challenges were likely to waste the court’s time, lead to confusion, and in criminal proceedings, be unfairly prejudicial.381 In particular, there were specific procedural rules which had considerable impact on the assessment of credibility of witnesses. These were:

the rule prohibiting a party from bolstering the credibility of a witness;

the rule prohibiting a party from impeaching its own witness; and

the collateral issues rule.

6.10The Law Commission described the first of these rules in the following terms:382

At common law a party cannot bolster the truthfulness of a witness – except in a tacit fashion, such as by way of introductory questions – unless that witness’s truthfulness has first been attacked. This is so even if a party anticipates an attack on that witness by another party. However, a party may rebut an attack of a witness’s truthfulness by calling another witness to affirm the first witness’s truthfulness. … Under the current law a witness whose truthfulness has been attacked in cross-examination may also be rehabilitated in re-examination, but it is uncertain what kind of evidence can be offered to do so. For instance, it is debatable whether a party can offer evidence of general good character to rehabilitate the witness.

6.11The rule against prohibiting a party from impeaching its own witness meant that:383

… a party cannot impeach the credit of its own witness, although it can call other evidence to contradict its own witness. In New Zealand this is reflected in s 9 of the Evidence Act 1908. … This section applies to both hostile and unfavourable witnesses, in both criminal and civil proceedings. Its prohibition of “general evidence of bad character” presumably includes evidence of such matters as the witness’s convictions and reputation for veracity.

If the witness proves hostile, he or she may be cross-examined by the party calling the witness, but not … about bad character, although cross-examination about possible bias is probably permissible. Cross-examination may also extend to prior inconsistent statements of the hostile witness. In New Zealand this right is explicitly recognised in s 10 of the Evidence Act 1908. …

6.12 Finally, the third of these rules, the collateral issues rule:384

… [applied] when cross-examination is directed to a matter which is not a fact in issue. It treats a witness’s answers as final and does not permit evidence which is intended to contradict them. Commonly the cross-examination is directed to credibility, whether relating to error or to truthfulness.

Collateral issues do, however, vary in their degree of relevance. As a consequence, a number of exceptions to the collateral issues rule, have become established. They relate to questions designed to show:

that the witness has previous convictions for indictable offences;

that the witness has previously made a statement inconsistent with his or her present testimony;

that the witness is biased in favour of or against one of the parties; and

that the witness suffers from a physical or mental disorder which affects the witness’s credibility.

In all of the above instances, contradictory evidence may be offered.

6.13The test for determining what was a “collateral issue” was laid down in Attorney-General v Hitchcock:385

… the test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.

6.14This test was, however, described by the Court of Appeal as “easy to state” but “notoriously difficult to apply”.386 The Law Commission noted in 1997 that courts were “increasingly doubting, and even eroding” the collateral issues rule.387

6.15In short, the previous law can be summarised in the following terms: prosecution evidence of bad character going to a defendant’s veracity was excluded unless the defendant put his or her own character in issue or cast imputations upon a prosecution witness. If either of these things occurred, the courts exercised a discretion to exclude or narrow the bad character evidence if potential prejudice outweighed the probative value for veracity. A defendant had a free hand to disclose his or her own convictions and had wider rights against co-defendants (although still subject to a judicial discretion). In theory, evidence of bad character went only to veracity and not to the defendant’s propensity to commit the offence he or she was charged with. Juries were directed on this latter point.

6.16 The Law Commission later identified two key difficulties in practice with this system. First, a defendant suffered the consequences of casting imputations on a prosecution witness, even when the line of questioning was essential to the defence being mounted. Second, a defendant could avoid disclosure of evidence going to veracity by not giving evidence and thus not bringing his or her veracity into issue.388

6.17 In approaching codification of the law in 1999, the Law Commission cited the authors of Cross on Evidence, who had said that the law on the admissibility of character evidence was beset by “confusion of terminology, by the disparity of contexts to which the terminology is applied, by the vicissitudes of history, and by the impact of piecemeal statutory change.”389

6.18The general rule proposed by the Law Commission in its codification proposals was that evidence challenging or supporting a person’s truthfulness would be admissible only if it were “substantially helpful” in assessing that person’s truthfulness.390 The Law Commission saw this as a test of “significant or heightened relevance so as to prohibit truthfulness evidence that is of limited value”.391 The commentary to the proposed Code contained a (non-exhaustive) list of factors considered to be appropriate considerations in determining substantial helpfulness.392

6.19 The Evidence Code abolished the collateral issues rule that had proven troublesome for the common law.393 It did, however, preserve the “retaliatory features” of the common law rules governing the admissibility of prosecution evidence about a defendant’s bad character (in what became s 38(2) of the Act).394

6.20The Justice and Electoral Committee made a number of changes to the “truthfulness” provisions proposed by the Law Commission. These were:395

“Truthfulness” was replaced with the term “veracity” on the basis that the latter is more appropriate because it places the emphasis upon the intention to tell the truth, whereas “truthfulness” is more readily confused with factual correctness or accuracy;

Reference to a person’s reputation for being untruthful was deleted as it was considered irrelevant to an assessment of the veracity of evidence;

Some wording was removed to eliminate any possible impression that the Bill was intended to change the practice of allowing parties to challenge the testimony of their own witnesses by calling other evidence or by cross-examining witnesses called by another party;

Wording was amended to reinstate the law limiting the opportunity for the prosecution to call evidence as to the defendant’s bad character as the Law Commission’s original formulation was seen as skewed too far in favour of the prosecution;

A clause giving judges more guidance when determining whether to allow the prosecution to offer evidence about a defendant’s veracity was added (this clause incorporated five factors set out in the Law Commission’s commentary to its proposed Evidence Code); and

Amendments were made to allow a defendant in a criminal proceeding to offer veracity evidence about a co-defendant only with the permission of the judge to ensure a proper balance between the respective interests of co-defendants.

6.21As enacted, s 37 of the Act provides:

37 Veracity rules

(1) A party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.(2) In a criminal proceeding, evidence about a defendant’s veracity must also comply with section 38 or, as the case requires, section 39.(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:(c) any previous inconsistent statements made by the person:(d) bias on the part of the person:(e) a motive of the part of the person to be untruthful.

(4) A party who calls a witness—

(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.

(5) For the purposes of this Act, veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding.

Propensity evidence

6.22Prior to the Act, the general rule was that evidence of propensity to offend was not admissible on the basis that such evidence is unduly prejudicial and therefore contrary to a fair trial. However, despite this basic principle of non-admissibility, exceptions developed. These recognised the inherent potential for prejudice but allowed propensity evidence to be admitted. The most significant of these exceptions was the so-called “similar fact” exception.

6.23 Similar fact evidence involved other conduct which had significant probative value in relation to an issue in the present case. That other conduct may or may not yet have been the subject of a criminal charge or conviction, and it may have even been the subject of an acquittal.396 Broadly speaking, it meant evidence as to disreputable aspects of a defendant’s character, other than evidence of the commission of the offence being tried.397

6.24The Law Commission in 1997 said that it would be “a significant challenge to codify a rule which has defeated precise expression.”398 The Law Commission said that:399

In spite of the New Zealand Court of Appeal’s view that the law is settled, the admission or exclusion of similar fact evidence is often the subject of litigation, and is frequently taken to appeal. This reflects the significance attached to such evidence by both prosecution and defence. As the common law now stands, the admission of similar fact evidence is based on the judge’s assessment of the balance between the probative value and the prejudicial effect of the evidence. But each case presents unique factors, and the imprecise nature of the “test” applied in considering admission means that it can be difficult for counsel to assess in advance whether the evidence will be admitted.

Indeed, there is some doubt about the meaningfulness of the common law test.

6.25While the basic test, namely a balancing of probative value against unfair prejudicial effect, seemed clear enough at first glance, confusion and debate about terminology was a common theme in the case law, something that the Law Commission also acknowledged in its report setting out its recommended propensity provisions in its Evidence Code.400 It suggested that propensity evidence be defined in the Evidence Code as “evidence of a person’s tendency to act in a particular way, as shown by his or her reputation, disposition, acts and omissions”.401

6.26In recommending the incorporation of “propensity evidence” in its proposed Evidence Code, the Law Commission said:402

Courts have always been – and in the Commission’s view rightly – cautious about admitting propensity evidence about the defendant. The concern is that the jury might make unwarranted and dangerous assumptions along the lines of “once a thief, always a thief.” The Law Commission has, for the most part, codified the common law on propensity evidence (both “bad character” and “similar fact” evidence). The proposed rules also clarify certain aspects of the common law. …

6.27The Justice and Electoral Committee recommended just a few changes to the propensity provisions proposed by the Law Commission, but none that significantly altered the Law Commission’s suggested codification of the common law on propensity evidence.403 The propensity provisions were subsequently enacted as follows:

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—

(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or(ii) the cause of action in the proceeding in question.

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41, 42 or 43, whichever section is applicable; and(b) a complainant in a sexual case in relation to the complainant’s sexual experience may be offered only in accordance with section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

41 Propensity evidence about defendants

(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the Judge, offer propensity evidence about that defendant.(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).

42 Propensity evidence about co-defendants

(1) A defendant in a criminal proceeding may offer propensity evidence about a co-defendant only if—

(a) that evidence is relevant to a defence raised by the co-defendant; and(b) the Judge permits the defendant to do so.

(2) A defendant in a criminal proceeding who proposes to offer propensity evidence about a co-defendant must give notice in writing to that co-defendant and every other co-defendant of the proposal to offer that evidence unless the requirement to give notice is waived—

(a) by all the co-defendants; or(b) by the Judge in the interests of justice.

(3) A notice must—

(a) include the contents of the proposed evidence; and(b) be given in sufficient time to provide all the co-defendants with a fair opportunity to respond to that evidence.

43 Propensity evidence offered by prosecution about defendants

(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

(4) When assessing the prejudicial effect of the evidence on the defendant, the Judge must consider, among any other matters,—

(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

393The Court of Appeal in R v Smith [2007] NZCA 400, at [20] stated that the combination of the “substantially helpful” test and the s 8(1)(b) requirement for evidence that would needlessly prolong the proceeding to be excluded, means that, in practice, there will be little, if any, difference between the Act and the common law.

396In some other common law jurisdictions, the similar fact evidence rule has been applied only to evidence of the defendant’s previous criminal acts; see Kenneth Arenson “The propensity evidence conundrum: a search for doctrinal consistency” (2006) 12 University of Notre Dame Law Review 31 at 33 for discussion of the position in Australia.